Re: Winton, Ex Parte: Jolliffe - [1987] FCA 818

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IN TBE EZDERATJ COURT OF AUSTRALIA

GENERAL DIVISION

BANRRUPTCY DISTRICT IN TEE STATE OF	)	NO. W 168 Of	1984X
1

NEW	SOUTH W A L E S AND	1
)

TEE

AUSTRALIAN CAPITAL TERRITORY

Re :

KENNETE GRAFlAM WINTON

Debtor

Ex parte:

JAMES JOEN JOUIFFE

Deputy Registrar

in Bankruptcy

CORAM: Einfeld J

PLACE: Sydney

DATE:

1 0 June 1987

EX TEMPORE m

This is an application on behalf of the bankrupt,

Kenneth James Winton,

for an order pursuant to section 1 4 ( 5 ) of the Bankruptcy Act 1966 ("the Act") that a summons of the Registrar under section 81 of the Act be

reviewed.

also seeks review of section 81 summonses issued to two

companies called

Latia Pty. Limited and Cataplumb Pty. Limited

produce records and other documents.

Heard at the same time as those two applications were applications

those two companies that the summonses issued against

them under section

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81 should be set aside. I have some doubt about whether Mr. Winton can

properly be an applicant for review of the issue of the summonses against the two companies, but because those companies have raised the same matters in argument on their applications to set aside as has Mr.

Winton in his applications for review, it is

not necessary to decide

that matter in this particular case. All applications for the summonses

were made by the Deputy Registrar in Bankruptcy ("the respondent").

The grounds upon which all applications sought the orders referred

were

that firstly the

respondent

had

no status to

bring

the

applications, and secondly, that the summonses themselves were too

wide,

oppressive, and insufficiently precise.

So far as concerns the question

of the status of the respondent to bring the application, this was

put

on two grounds at the commencement of the hearing. The first ground was

that under

section 81 itself the application can only be brought by

creditor or by the official receiver or trustee.

Section 15(4) provides that the Inspector-General

may

written

document direct an officer to exercise and perform such

of the powers

and

duties of an official receiver as he specifies in the direction.

The evidence discloses,

through an affidavit filed by the

respondent

and dated 25 March 1987, that he was appointed by

the Inspector-General

under

section

15(4)

to carry out the relevant duties of the official

receiver in this matter.

There is therefore no substance to the

point

taken in respect of this aspect o f the respondent's	status to bring the
proceedings.

The second attack on his status is that under section

15(4),

the only

person who may be directed in this way by the Inspector-General to exercise the official receiver's powers and perform his functions

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duties is "an officer".	It is said that the Deputy Registrar does not
so qualify.

"Officer" is defined in section 5(1) of

the Act as an "officer of the

court or of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re: Winton, Ex Parte: Jolliffe

Details

AGLC: Re: Winton, Ex Parte: Jolliffe [1987] FCA 818
Case: [1987] FCA 818
Decision Date: 10 Jun 1987

CaseChat Overview and Summary

In the case of Re: Winton, Ex Parte: Jolliffe, the parties involved were Kenneth Graham Winton, a bankrupt, and James John Jolliffe, the Deputy Registrar in Bankruptcy. The dispute revolved around an application by Winton for an order to review summonses issued under section 81 of the Bankruptcy Act 1966, which required certain companies to produce records and documents. Additionally, the companies Latia Pty. Limited and Cataplumb Pty. Limited sought to set aside the summonses issued against them. The legal issues before the court were whether the Deputy Registrar had the requisite status to bring the applications and whether the summonses were too wide, oppressive, or insufficiently precise.

The court first addressed the issue of the Deputy Registrar's status to bring the applications. The argument was made that the Deputy Registrar was not an 'officer' as defined in section 5(1) of the Act. However, the court determined that the respondent was appointed by the Inspector-General under section 15(4) to exercise the powers and perform the duties of the official receiver. This appointment sufficiently established the respondent's status. However, the court noted that the argument that the Deputy Registrar was not an 'officer of the Commonwealth' had not been raised initially and thus reserved the decision on this point for later determination.

Regarding the summonses, the court found that they were not overly broad or oppressive. The summonses specified the classes of documents and the categories that they might reasonably cover. The court held that the summonses need not identify every document sought in detail but could focus on the broader categories of documents and their relevance to the investigation. The summonses clearly outlined the documents being sought and the purposes for which they were required, thereby meeting the necessary standards.

In conclusion, the court dismissed the aspects of the applications challenging the terms of the summonses. However, it reserved the decision on the status of the respondent to issue the summonses to allow for further submissions. The court set a timetable for the conclusion of this aspect of the litigation.

Orders